Cyber Ethics: From Policy to Practice

December 3, 2011

AASA

Running the Store 2011

Austin, Texas

Presented By:

Gretchen M. Shipley

Phone: (760) 304-6015

gshipley@fagenfriedman.com

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What would you do?

• After school students go to a restaurant.• One student films others making derogatory

statements about a 13-year-old, calling her a “slut” and “ugly.”

• Student who filmed posts it to YouTube from a home computer.

• Next day, victim & parent bring video to the school’s attention.

• What would you do in response to the video?

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Objective

• Review what steps a school district can take to promote CYBER-CITIZENSHIP in the school community.

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Evolution and Integration

of Technology

in the School Community

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What we’ve learned:

One voice can impact your community.

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Impact

• Because one voice can wield so much power, it is critical that your community (students, teachers, staff, administrators, school board, parents, community members) understand the importance of:

CYBER-ETHICS

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Balance

• At the same time, school districts must understand the limitations of their ability to police students, teachers, and others in cyber-space.

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Challenge

• Law has not caught up with technology.

• School districts must operate according to statutes and case law that do not contemplate modern technology.

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Traditional Framework

• School district responsible for student conduct during school hours.

• “A pupil may not be suspended or expelled . . . unless that act is related to a school activity.”

• Related to a school activity includes, but is not limited to:– While on school grounds– While going or coming from school– During lunch period on or off campus.– During, while going to or from, a school-sponsored activity

(CA Ed. Code § 48900.)

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Traditional Framework

• The traditional framework for school district jurisdiction for student discipline is based on geography.

• Based on this traditional framework, we will apply modern day (and modern technology) misconduct scenarios and provide guidance on school district ability and responsibility to discipline such conduct.

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Cyber-Ethics Webinar Overview

• We will look at the promotion of student and employee cyber-ethics in their usage of:– School-Issued Technology– Personal Technology Off Campus– Personal Technology as Instructional Tool– Personal Technology On Campus

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School-Issued Technology

• What is “school-issued technology”?

Examples: – Laptops– E-mail Accounts – I-Pads– On-Line Access

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School-Issued Technology

• Unethical use of school-issued technology includes any conduct that violates a school policy, which may include:– Access to impermissible websites– Hacking– Stolen passwords– Bullying– Sexual harassment– Threats

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School-Issued Technology

• What is a school districts authority to search school-issued technology:– For students?– For staff?

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School-Issued Technology

• What if a teacher is on their prep. period, lunch break, or returns to the classroom in the evening to use a school-issued laptop?

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School-Issued Technology

• When could a teacher be disciplined for cyber-misconduct on school-issued technology?– When the misconduct is immoral,

unprofessional, a persistent violation of school policy, or any of the additional grounds for discipline.

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Promoting Cyber-Citizenship on School-Issued Technology• Thorough policies on acceptable use of school

issued technology– Separate policies for students and teachers– Expressly state no privacy interest– Must they be signed?

• Educate students and staff on District acceptable use standards and serious consequences for violation.– No privacy interest / forensic IT investigation

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• Recap on School-Issued Technology:– A school district’s right to control student

and employee conduct is broad.

School-Issued Technology

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Cyber-Ethics in Cyber-Space

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Cyber-Ethics in Cyber-Space

• Under the traditional discipline framework, it is more difficult for a school district to promote ethical conduct in cyber-space.

• When are social networking, YouTube and blogging considered “related to a school activity”?

• When does social networking, YouTube and blogging demonstrate “immoral conduct” or “evident unfitness to teach”?

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Student Right to Free Speech

• Tinker v. Des Moines – School district may restrict speech if it is

reasonably foreseeable that there will be a substantial disruption to the orderly operation of the school.

• J.S. v. Blue Mountain SD & Layshock v. Hermitage SD

• T.V. v. Smith-Green Commty. School Corp.• J.C. v. Beverly Hills USD

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What Constitutes a Substantial Disruption? Courts found student discipline to be justified when:• A school district could reasonably foresee that

violent or threatening speech would cause a substantial disruption

• Administrators missed school activities in order to respond to a deluge of phone calls and parent complaints (but substantial disruption had to me more than administrators being pulled away from ordinary tasks)

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What Constitutes a Substantial Disruption? (cont.)•Substantial disruption requires more than:

– Mere gossip;– Groups of students talking about an incident

two or three times in class;– “Divisiveness” among teammates; or – A few students missing portions of one or two

classes to participate in school investigation of online speech.

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• Cyberbullying versus Free Speech = Safety First

• Site administrators inundated with claims of bullying

• Response may be difference if on campus versus cyberbullying

What is Bullying/Cyberbullying?

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• Any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, that has the effect of or can reasonably be predicted to have the effect of:

– placing a reasonable pupil in fear of harm to his or her person or property

– causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health

– causing a reasonable pupil to experience substantial interference with his or her academic performance

– causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school

Example of Legal Bullying / Cyberbullying Definition:

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• Indirect, Usually Off-Campus• Affects Broader Audience• No Physical Presence• Harder to Pinpoint Victims• Harder to Prevent• ANONYMOUS

Cyberbullying Different than Traditional Bullying

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Training Considerations

• Designate a point person to train staff regarding digital citizenship, tolerance, and bullying

• Designate a point person to conduct bullying investigations

• Bullying prevention training should include discussion regarding sexual

orientation, gender identity, and transgender issues and raise awareness throughout the school community

• Educate community on how to identify, respond to, and prevent bullying; educate parents on the limitations placed on school district, to prevent bullying off campus, and the need for parent and community involvement

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• Embed a campaign to promote citizenship throughout the school community in back-to-school and school safety materials.

• Evaluate and update all applicable school policies to include responsible use of new technology.

• Implement a mechanism for the school community to anonymously report bullying.

Bullying Prevention Tips

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• Parent education and involvement

• Improved supervision

• Consistent consequences and social/emotional interventions

• Train all school staff on how to identify, prevent and respond

Bullying Prevention Tips cont.

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• Establish District-wide or school-wide expectations

• Implement consistent and escalating consequences

• Create individualized intervention plans

• Respond immediately to reports of bullying• (Building a Caring School, Celeste Campbell, Ed.D)

Bullying Prevention Tips cont.

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Employee Cyber-Ethics:What would you do?• Receive anonymous call from a parent

directing you to a Craigslist ad.• Ad is a photo of a middle school teacher,

nude images of his body and graphic, vulgar text soliciting sex.

• His name and employment information are not included in the ad.

• Site is restricted to people under 18.

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CPC v. SDUSD (Lampedusa)

• Teacher as role model

• Cyber conduct caused principal to lose confidence in teacher’s “fitness to teach”

• Slippery slope: Could a Match.com ad cause a principal to lose confidence in a teacher?

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Employee Conduct / Misconduct?

• Blogging about working conditions?

• Organizing a strike?

• Complaining about students, parents, board members???

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Personal Technology Off Campus

• Bottom line for student / employee conduct on their own technology on their own time:– School district has little jurisdiction to discipline

students unless it can be shown that the conduct is reasonably foreseeable to cause a substantial disruption to school operations.

– For employees, conduct may also be grounds for discipline if the conduct still falls within the enumerated grounds, despite being off-campus, just be cautious of collective bargaining implications.

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Personal Technology as an Instructional Tool

From the Classroom Wall to the Facebook Wall: Inviting the Outside In

Small group assignments on Facebook

Posting student made videos on YouTube

Campus or District Facebook Page

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Law Has Not Caught Up with Technology• Inviting the Cyber-World into the classroom is rife

with legal problems.• Legal perspective: Not trying to stand in the way

of education innovation, but trying to assist school districts in implementing innovative technology responsibly.

• Attorneys role is to anticipate potential legal pitfalls and provide tools (i.e. policy and instruction) on how to prevent those pitfalls.

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Personal Technology as Instructional Tool - Hypo #1

• Under CIPA, a school district must monitor and filter school district internet use. – How would the District monitor Facebook if it

is required as an instructional tool? – What if the District saw misconduct

while monitoring?

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Personal Technology as Instructional Tool - Hypo #2

• Students create a classroom project on video and post it on YouTube.– Do School District

photograph / video waivers include this scenario?

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Personal Technology as Instructional Tool - Hypo #3• The campus Facebook page becomes a

forum for student, teacher or parent complaints about the District. – How much authority does the school district

have to remove posts?– What if an administrator is tagged in a

vacation photo in a bathing suit by a family member, can all Facebook “friends” on campus page view it?

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Personal Technology as Instructional Tool• To the extent a school district is

going to utilize outside technology as an instructional tool, school policies should be put in place to promote cyber-citizenship in social networking, blogging, YouTube, etc.

• It has not yet been tested in the law how enforceable such policies are.

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Teachers and Students as “Friends”

• By the creation of a virtual “social network” through technology that is no longer tied to the school site, there has been an explosion of inappropriate teacher-student conduct and relationships.

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Teachers and Students as “Friends” - Hypo #1• Teacher has a weekend job at Hooters wearing

skimpy clothes.• Hooters photos posted to her Facebook wall. • Teacher is friends with 6th grade students.

– Is this immoral or unprofessional conduct?– Can a school site prohibit a teacher and student

from being “friends” on social networking sites?

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Teachers and Students as “Friends” - Hypo #2• Teacher and Student are Facebook

friends.

• A photo is posted to Student’s wall of the Student smoking marijuana.– Does this trigger the teacher’s duty to

report abuse and neglect to the police or CPS as a mandatory reporter?

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Promoting Cyber-Ethics in Social Networking• Encourage teachers not to friend students. • If social networking is interwoven into the

educational process, encourage teachers to exercise good judgment in “socializing” with students. – For example, teachers may want to create a a

separate professional and personal Facebook page.• Train teachers on the danger of students viewing

inappropriate content on their wall and the impact mandatory reporting when they view misconduct on student walls.

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Teachers and Students as “Friends”• An Inappropriate / sexual relationship

between a teacher and student is grounds for dismissal as immoral conduct (even if the student is 18).

• Knowledge of or reasonable suspicion of a teacher and a student having an inappropriate / sexual relationship will likely trigger a teacher’s mandatory reporting duty.

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Personal Technology On Campus• It’s a bird, it’s a plane,

it’s a. . . Personal Electronic Device!

• Almost every person now carries a phone, a camera, a video camera, a twitter account, and Facebook access . . . in their pocket!

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Personal Technology On Campus• While on campus, a school district can

promote cyber-ethics on personal electronic devices through a “cell phone” policy.

• Districts vary on acceptable times of use and rules regarding confiscation.

• Cell phone policy should be updated to include all functions of a personal technology device and may be blended with photograph and video policy.

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Personal Technology On Campus• Cell phone policies should be cautious

about student search and seizure procedures.

• Klump v. Nazarath: Parents sued school for violation of privacy rights.

• Reasonable suspicion = “justified at inception” and “reasonable in scope.”

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Personal Technology On Campus

• Does your District issue cell phones to staff?

• Do teachers have a privacy interest in a school district issued phone?

• City of Ontario v. Quon

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Personal Technology On Campus• Emergency exceptions

in cell phone policies (pros and cons)

• Emergency Communications Plan

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Personal Technology On Campus• Last but not least . . . Sexting!?

– Seattle cheerleader case: Parents sued school district for inconsistent discipline.

– Slumber party tweens: Prosecuted for child pornography.

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Personal Technology On Campus• Sexual images of a minor trigger

mandatory reporting.

• Criminal prosecution may include child pornography. Consequences include registered sex offender status.

• Anticipate creation of a “Romeo and Juliet exception” by the state legislature.

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Personal Technology On Campus• If you discover a “sexting” photo on

campus: – What not to do: pass it on

to an administrator.– What to do: seal up the image,

tell an administrator, and follow mandatory reporting protocol.

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• A 13 year-old student “sexts” a topless photo to a boyfriend.

• She is being harassed and ridiculed by other students because of the texted image.

• A teacher reports seeing shallow cuts on the student’s thigh.

Personal Technology / Sexting What Would You Do?

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Witsell Case Example

• In Witsell, a school social worker provided mental health counseling and had the student sign a no-harm contract.

• The social worker did not notify site administrators or student’s parents of the counseling or cuts.

• The following day, the 13 year-old hung herself and died.

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Conclusion: Promoting Cyber-Ethics

• To promote cyber-ethics:– Have clear policies in place.– Update policies as technology evolves. – Train students and staff on acceptable use

and cyber-citizenship.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

Thank you!!

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